In a notable decision in Drazen v. Pinto, the 11th Circuit Court of Appeals has unanimously ruled en banc that one unwanted telemarketing text message is enough to constitute a concrete injury, allowing plaintiffs standing to file suit. The lawsuit was filed in 2019 by Susan Drazen against web-hosting company GoDaddy. She alleged that GoDaddy used a prohibited automatic telephone dialing system (ATDS) to make promotional calls and send text messages in an attempt to sell its services and products. The full details of the ruling can be found here.
The 11th Circuit’s ruling aligns it with the 9th Circuit, while setting it apart from the 3rd and 7th Circuits, complicating the legal landscape. The 3rd and 7th Circuits have previously held that a single unwanted call or text does not confer standing.
This split may bring the question of the sufficient harm requirement before the Supreme Court, a possibility that has significantly increased as its implications for telemarketing restrictions become clearer.
Moreover, the decision represents a crucial turning point in the ongoing debate over the injury requirement in standing and the scope of autodialer restrictions under the Telephone Consumer Protection Act (TCPA). This acutely affects businesses using autodialing, who must now navigate the diverging interpretations of the TCPA in different circuits.
Legal professionals should not only be aware of this decision but they should also review their current marketing strategies, especially those reliant on automated dialing systems. It would be prudent to understand the potential risks of violating TCPA if their practices are not in line with the 9th and the 11th Circuit’s interpretations of it. Given the fluid nature of the law, they should also be prepared for further developments and changes in this area of law.